Investigative Powers v Charter of Human Rights

Edit: The interplay between the Charter and the Major Crime (Investigative Powers) Act 2004 was again explored in BCD v The Chief Examiner & Anor [2012] VSC 193.

The applicant alleged inconsistency with Charter rights and repugnancy with the essential characteristics of a court under Ch III of the Constitution. BCD submitted that 2008 amendments to the Act allowing the Supreme Court to revoke a coercive order should be read as being exercisable at any time, and not just prior to its expiry. (BCD sought the revocation of an examination order it was alleged the applicant had failed to comply with, and was about to stand trial for that refusal).

Kyrou J found that it was too late to revoke the expired order [at 22]:

In my opinion, the Court’s jurisdiction under s 12(1) of the Act is confined to revoking a coercive powers order prior to its expiration. Once the order has expired, the Court lacks jurisdiction to revoke it. This is so even if the proceeding seeking a revocation of the order was commenced prior to its expiration.

Kyrou J said that the applicant could have filed application to revoke the order prior to its expiry, even after the alleged contravention. But once it had expired, there was no longer an order that could be revoked.

On the judicial review point, it was clear that the applicant was well out of time and required special circumstances in order to seek review under O 56.

Kyrou identified [at 35] that, although each case must be determined on its own merits, the relevant considerations to pay mind to included the reasons for the delay: Hinch v County Court of Victoria [2009] VSC 548, the length of the delay: Young v County Court [2005] VSC 311, whether the applicant had legal representation, whether the respondent has suffered any prejudice as a result of the delay: Young again, whether the respondent would be prejudiced by an extension of time, whether the respondent opposes the extension of time, the injustice to the applicant if the decision or order is allowed to stand: Lednar v Magistrates’ Court (2000) 117 A Crim R 396, the interests of and justice to both parties, and whether the applicant has an arguable case: Lednar again. Another important consideration is the public interest in ensuring certainty and finality in public decision-making once a statutory time limit for challenging a decision has expired: Lednar.

Though the respondents couldn’t point to any particular prejudice caused by the delay, Kyrou J found that special circumstances were not made out. Consequently, the reagitation of earlier arguments about constitutionality and human rights were not argued.

What effect has the Charter of Human Rights and Responsibilities Act 2006 had on the law of Victoria?

Since it’s a question that can’t be answered in a whole shelf of books, I’m not going to try to do it in one post. For a comprehensive discussion of the first year of the Charter‘s operation, go and have a look (if you haven’t already) at Jeremy Gans’ Charterblog.

(I went to grab the link and discovered that Jeremy has come out of self-imposed blogging retirement to discuss the case that is the main focus of this post. For his analysis of Re an application under the Major Crime (Investigative Powers) Act 2004 [2009] VSC 381, go there now. For a potted history of the Office of Chief Examiner, see his article at Inside Story).

Quite simply, the impact of the Charter depends who you ask. My impression from speaking to practitioners representing the police and the Crown is that they think it’s proved to be the Millenium Bug of Victorian law: after a lot of anxious predictions, the law continues to be decided the way it always has been.

On the other hand, Kracke v The Mental Health Review Board [2009] VCAT 646wouldn’t have been decided the same way without it, and is only one example of decisions influenced by the Charter that will affect hundreds if not thousands of people’s lives. While it might not have changed the legal landscape overnight, the Charter has the potential to have a sustained and significant impact over time.

I had been waiting for the ultimate showdown of them all, and it came along last week: the point where the irresistable force of the Major Crime (Investigative Powers) Act 2004 ran at full speed into the immovable object of the Charter of Human Rights and Responsibilities Act 2006.

Although it didn’t feature very much in the mainstream media, the case represents the collision of two pieces of legislation with diametrically opposed aims: the investigation of criminal offences at its most coercive; against the upholding of individual freedoms and privilege against self-incrimination. Perhaps the suppression of all the identities concerned damped things down, though I would have thought it would add an air of mystery to the coverage.

The Major Crime (Investigative Powers) Act 2004 is undeniably coercive (some might say draconian) legislation. It allows the Chief Examiner to apply to the Supreme Court for a coercive powers order. Such an order allows the summonsing of witnesses to secret hearings, with criminal sanctions for non-attendance: s 37. The hearing is not open to the public: s 35. The rules of evidence do not apply: s 30. The witness does not have to be told what the nature of the enquiry concerns, but commits a criminal offence if they refuse to answer any question put to them: s 37.

A coercive powers order grants the Chief Examiner similar powers to those of the Director of the Office of Police Integrity, except instead of police that are under investigation it is anybody that is potentially involved in (not necessarily suspected of) an organised crime offence. This is defined at s 3.

organised crime offence means an indictable offence against the law of Victoria, irrespective of when the offence is suspected to have been committed, that is punishable by level 5 imprisonment (10 years maximum) or more and that—

(a) involves 2 or more offenders; and

(b) involves substantial planning and organisation; and

(c) forms part of systemic and continuing criminal activity; and

(d) has a purpose of obtaining profit, gain, power or influence.

Perhaps most significantly, s 39 of the Major Crime (Investigative Powers) Act 2004 abrogates the common law right against self-incrimination. The only legal protection offered to a witness is that their evidence may not be used against them in a criminal proceeding.

39. Privilege against self-incrimination abrogated

(1) A person is not excused from answering a question or giving information at an examination, or from producing a document or other thing at an examination or in accordance with a witness summons, on the ground that the answer to the question, the information, or the production of the document or other thing, might tend to incriminate the person or make the person liable to a penalty.

(2) Subsection (3) limits the use that can be made of any answers given at an examination before the Chief Examiner, or documents or other things produced at an examination before the Chief Examiner or in accordance with a witness summons.

(3) The answer, or the document or other thing, is not admissible in evidence against the person in—

(a) a criminal proceeding; or

(b) a proceeding for the imposition of a penalty—

other than—

(c) proceedings in respect of an offence against this Act; or

(d) proceedings under the Confiscation Act 1997; or

(e) a proceeding in respect of—

(i) in the case of an answer, the falsity of the answer; or

(ii) in the case of the production of a document, the falsity of any statement contained in the document.

Though this section clearly prohibits using a witness’s direct evidence against them in a criminal hearing, the scope for derivative evidence to be used against them was less settled. (So if a witness was compelled to provide the location of a gun, the evidence of providing the location of the gun would be inadmissible, but the location of the gun and any forensic evidence obtained from it would still be admissible against them.)

In Re an application under the Major Crime (Investigative Powers) Act 2004 [2009] VSC 381 an application for a coercive powers order was granted by the Supreme Court, subject to a stipulation that the power not be exercised until the apparent inconsistency with s 25(2)(k) of the Charter was resolved.

Section 25(2)(k) of the Charter reads:

25. Rights in criminal proceedings

(1) …

(2) A person charged with a criminal offence is entitled without discrimination to the following minimum guarantees—

(k) not to be compelled to testify against himself or herself or to confess guilt.

Chief Justice Marilyn Warren ruled on this conflict.

Her Honour determining the effect of the Major Crime (Investigative Powers) Act required referring to the Charter (at [78]), and that s 39 does limit a fundamental human right (at [143]). Applying the test at Charter s 7, the Chief Justice developed a new test similar to the fruit of the poisonous tree test familiar to viewers of American police and legal procedurals:

[157] Returning to the hypothetical examples I set out earlier, I note the problem highlighted in each instance falls squarely into the first category of derivative evidence established in S(RJ). My approach will continue to allow investigations to take place under the Act, and will not exclude the Crown from utilising any of the following:

(2) evidence that was discovered as a result of the testimony, but that could have been discovered without such testimony; (3) evidence that would, or would probably, have been discovered even without the testimony; and (4) evidence that was discovered after the testimony was given, but independently of the testimony. (Citing R v S(RJ) [1995] 1 SCR 451 at 546.)

The Crown bears the burden of proving that one of these situations applies, on the balance of probabilities ([159]). Her Honour concluded:

[177] In interpreting s 39 of the Major Crime (Investigative Powers) Act 2004, derivative use immunity must be extended to a witness interrogated pursuant to the terms of the Act where the evidence elicited from the interrogation could not have been obtained, or the significance of which could not have been appreciated, but for the evidence of the witness. Derivative use of the evidence obtained pursuant to compelled testimony must not be admissible against any person affected by s 39 of the Act unless the evidence is discoverable through alternative means.

But the Court decided that the provision (as newly interpreted) did not represent an unreasonable limitation on human rights. That meant Charter s 36 (declaration of inconsistent interpretation) did not apply.

So, no earth-shattering revelations. Victorian law will adopt an interpretive approach that will give each side some, but not all, of what they wanted, which experience has shown to operate fairly well elsewhere. No declaration of inconsistency.

While other observers may see it differently (Jeremy describes it as “the best thing that’s ever come from the Charter so far”), I’ll call that result a draw.

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